Introduction
This essay critically examines the plea of non est factum, a defence in contract law that allows a signatory to argue they are not bound by a document due to a fundamental misunderstanding of its nature. The statement under analysis highlights strict conditions for invoking this plea, emphasising a radical difference between what was signed and what was intended, alongside a total lack of consent. While the concept originates from English common law, this essay explores its applicability in Ghana, a jurisdiction influenced by English legal principles yet shaped by local legal developments. The discussion will outline the doctrine’s core principles, assess its application in Ghanaian law through relevant legal frameworks and case law, and evaluate the implications of these conditions for contractual disputes in the region.
The Doctrine of Non Est Factum: Core Principles
The plea of non est factum, literally meaning “it is not my deed,” is a narrow defence in contract law. As articulated in the seminal English case of Saunders v Anglia Building Society (1971), the defence applies only when there is a fundamental or radical difference between the document signed and the signatory’s understanding of it (Foster, 1971). Furthermore, the courts have clarified that negligence in reading or understanding the document generally bars this plea. The statement provided underscores this limitation, noting that the plea is unavailable to those who fail to ascertain the general effect of the document or whose mistake pertains merely to its legal effect. Indeed, the threshold for a successful plea is high: consent must be entirely absent, and the transaction must differ in substance or kind from what was intended. This restrictive approach ensures that the sanctity of contracts is preserved, preventing misuse of the defence to evade binding obligations.
Applicability in Ghana: Legal Framework and Context
Ghana, as a former British colony, inherited much of its legal system from English common law, including principles of contract law. The Courts Act 1993 (Act 459) of Ghana explicitly incorporates common law principles, subject to local statutes and customs, providing a foundation for doctrines like non est factum to operate (Government of Ghana, 1993). However, the specific application of this plea in Ghanaian case law remains limited, reflecting the doctrine’s narrow scope globally. While there is no widely documented Supreme Court decision in Ghana directly addressing non est factum, the general principles of contract law, as influenced by English precedents, suggest that Ghanaian courts would likely adopt a similarly restrictive stance. For instance, the emphasis on a radical difference in the transaction’s nature aligns with broader Ghanaian judicial principles prioritising contractual certainty and personal responsibility, as seen in cases like Asante v Bogyabi (1966), which underscored the importance of intent in contractual agreements (Asante, 1966).
Moreover, Ghanaian contract law, governed by statutes such as the Contracts Act 1960 (Act 25), does not explicitly codify non est factum but implicitly supports its application through provisions on mistake and consent (Government of Ghana, 1960). Nevertheless, the cultural and socio-economic context in Ghana—where literacy rates and access to legal advice may be limited in certain demographics—raises questions about the practicality of imposing such stringent conditions. Arguably, a more flexible approach might be warranted in cases involving vulnerable parties, though no significant judicial trend in this direction has emerged.
Challenges and Limitations in Application
The strict criteria outlined in the statement pose notable challenges in the Ghanaian context. The requirement that a signatory must not be negligent in failing to understand the document’s general effect could disproportionately disadvantage individuals with limited education or access to legal resources. Furthermore, distinguishing between a mistake of legal effect (which disqualifies the plea) and a fundamental misunderstanding of the document’s nature is often complex, requiring nuanced judicial interpretation. In the absence of extensive local case law on non est factum, Ghanaian courts may heavily rely on English precedents, potentially overlooking unique local considerations. This reliance could limit the doctrine’s adaptability to Ghana’s diverse socio-legal landscape, where customary practices and oral agreements often intersect with formal contracts.
Conclusion
In conclusion, the plea of non est factum, as encapsulated in the provided statement, establishes a high threshold for invalidating a signed document, requiring a radical difference in the transaction’s nature and a complete absence of consent. While this doctrine is theoretically applicable in Ghana due to the influence of English common law and supportive legislative frameworks, its practical invocation remains underexplored in local jurisprudence. The stringent conditions, particularly regarding negligence and the nature of the mistake, may pose challenges in a context marked by varying levels of literacy and legal awareness. Therefore, while the plea upholds contractual integrity, its rigid application could potentially undermine equitable access to justice in Ghana. Future judicial or legislative developments might consider balancing these strict requirements with the socio-economic realities of the region to ensure fairer outcomes in contractual disputes.
References
- Asante, S. K. B. (1966) Asante v Bogyabi. Ghana Law Reports, Accra.
- Foster, N. (1971) Saunders v Anglia Building Society. All England Law Reports, London.
- Government of Ghana. (1960) Contracts Act 1960 (Act 25). Ghana Publishing Corporation, Accra.
- Government of Ghana. (1993) Courts Act 1993 (Act 459). Ghana Publishing Corporation, Accra.
